Delhi

North East

CC/250/2023

Suraj Bhan & Anr - Complainant(s)

Versus

Piramal Capital & Housing Finance Ltd. - Opp.Party(s)

12 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 250/23

 

In the matter of:

 

1.     2.	Sh. Suraj Bhan S/o Sh. Kishan Sawroop Sharma   Smt. Sudesh Bala W/o Sh. Suraj Bhan   Both at:- R/o B 5, St. No. 06, West Karawal Nagar, Dayalpur, New Delhi-110094	Complainants
	Versus
	Piramal Capital & Housing Finance Ltd. Regd. Office at:- Unit No. 601, 6th Floor, Amiti Building, Agastya Corporate Park, Kamani Junction, Opp. Fire Station, LBS Marg, Kurla(West), Mumbai-400070   Also at:- Piramal Capital & Housing Finance Ltd. Ist& 2nd Floor phase, PN 6, Ground, Basement, 1, Block A, Sector 2, Noida, U.P 201301	Opposite Party

 

 

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

 

ORDER

Ms. Adarsh Nain, Member

1. The Complainants have filed the present complaint under Section 35 of the Consumer protection Act, 2019against the Opposite Party i.e. Piramal Capital &Housing Finance Ltd. As per the complaint,the complainants are the rightful owner of the property bearing no. 1/210, now known as 210, out of khasra no. 423, village Chandrawali alias Shahdara in the Abadi of Sri Ram Nagar, Shahdara, Delhi-110032. It is submitted that on behest of Opposite Party,  Complainant applied for loanagainsthis property bearing no. 1/210, now known as 210, out of khasra no. 423, village Chandrawali alias Shahdara in the Abadi of Sri Ram Nagar, Shahdara, Delhi-110032 and Opposite Partysanctioned loan to Complainant vide loan reference no. 20000042912 and 20000042947. The Complainant stated that Opposite Party bank demanded several documents from Complainant and pressurized him to sign many agreements and documents but officials of Opposite Party did not share a single document with the Complainant and stated that the same was lying at head office and ignored the request of the Complainant.  It is further stated that during the covid 19 outbreak,due to his ill health, the complainant was not in a position to discharge liability on time and Complainant soughtexemption from making payment of EMIs and officials of Opposite Party assured Complainant that his request has been forwarded to head office.  It is alleged that when he contacted Opposite Party, some unknown person pasted notice outside his property described above.The Complainant again demandedhis loan documentsbut Opposite Party officials ignored the request of Complainant. It is alleged thatthe complainant was ready to pay the entire loan amount but Opposite Party officials did not consider the request of Complainant. The Complainant further stated that Opposite Party officials take symbolic possession of the Complainant’s property on 07.03.22 u/s 13 (4) of SARFAESI Act and on the same day the Complainant approached the Opposite Party officials to repay the loan and take back the possession of the property but the Opposite Party again ignored the request to Complainant. TheComplainant further alleged that Opposite Party officials took physical possession of the property in absence of Complainant and when Complainant again requested for possession of property and showed his readiness to repay entire loan amount, he was misguided by the Opposite Party officialsand was asked not to take any legal action assuring him one time settlement. The Complainant has also sent legal notice to the Opposite Party dated 06.12.22 to take back possession of said property and repay the entire loan amount but bank officials ignored legal notice by not giving any satisfactory reply oflegal notice. The Complainant stated that as per the Rule prescribed under theLaw , the right to redemption is available to the mortgagor and provides a right to claim back his property. It is a basic right of the mortgagor under the mortgage transaction. The Complainant stated that Opposite Party officials cannot unilaterally take any action which violates Article 14 and Article 21 of the constitution of India, whereby infringing the fundamental rights guaranteed to a citizen under the constitution of India. The Complainant stated that he is ready and willing to repay the loan amount and wants the possession of his dwelling house, however, the bank is acting in a rigid, hostile and arm-twisting manner with the sole intent to harass.Hence, this shows deficiency in service on behalf of Opposite Party. Complainants have prayed either to give possession of the property in question or to pay the amount as per the market value of the property. They also prayed for Rs. 4,00,000/- as litigation charges and Rs. 30,00,000/- for mental harassment.
2. Arguments heard on admission. Perused the file.
3. The perusal of the complaint and the material on record reveals that the complainant availed loan from the Opposite Party against their property bearing no. 1/210, now known as 210, out of khasra no. 423, village Chandrawali alias Shahdara, in the Abadi of Sri Ram Nagar, Shahdara, Delhi-110032. It is clear from the record that the symbolic possession of the Complainant’s property has been taken by the Opposite Party officials vide notice dated 07.03.22 u/s 13 (4) of SARFAESI Act.
4. The question for adjudication in this complaint is whether the subject matter being seized off under the SARFAESI ACT can be adjudicated by the Consumer Forum.
5. Hon’bleDelhi State Consumer Dispute Redressal Commission videits order dated 19.03.2021 in the Complaint No.576/2013 titled SMT. KESHMATI MEENA Vs. ALLAHABAD BANK while deciding  the similar issue, held as  below;

“13. The Hon’ble NCDRC in yet another matter, in the matter of Bank of India versus Anil Raveendran decided on 03.03.2015 observed as under:-

 

We have considered the rival contentions. On careful perusal of record, it is evident that petitioner opposite party had initiated proceedings under SARFAESI ACT against the respondent complainant prior to filing of the consumer complaint. In the aforesaid context, it is to be seen whether in view of Section 34 of the SARFAESI Act, the consumer courts had jurisdiction to entertain the complaint filed after the initiation of the recovery proceedings under SARFAESI ACT. This issue is no more resintegra. The issue came up before the Coordinate Bench of this Commission in RP No. 995 of 2012 titled Harianandan Prasad Vs. State Bank of India decided on 31.05.2012 wherein the coordinate Bench has held thus:

"Even then we have heard learned counsel for the petitioner on merits and have considered his submissions. From a conspectus of the facts and circumstances of the case and material obtaining on record, there cannot be denial of the factual position that faced with the recovery proceedings initiated by the Bank, the complainant had filed consumer complaint alleging deficiency in service on the part of the Opposite Party Bank. The District Forum unmindful of the provisions of section 34 of the said Act had passed an ad interim order directing the opposite party bank not to take any steps for recovery of the loan dues from the complainant by taking coercive measures. In our view, to say the least, such an order was clearly without jurisdiction and amounted to the usurping of the jurisdiction which was legally vested in another statutory tribunal under a particular statute. The State Commission has done well in setting aside the said order and dismissing the complaint because once it is found that the complainant had already approached the Appropriate Tribunal which was ceased of the entire gamut of controversy. The complainant could not agitate the said question before a consumer fora established under the Consumer Protection Act, 1986. Various tribunals constituted under the statute are expected to exercise their jurisdiction in accordance with the provisions of the Act under which they have been constituted. There is a clear cut demarcation of the jurisdiction and powers amongst various tribunals and no attempt should be made by one Tribunal to usurp the powers and jurisdiction of other either directly or indirectly. Such a situation may lead to anomalous situation because the orders passed by the two or more tribunals on the same controversy may vary. The question would then arise as to which of the order is binding and valid on the parties. Such a situation has to be avoided in all circumstances. In the case in hand, what we have found is that the District Forum has exercised a jurisdiction which was not vested in it. Rather such a jurisdiction was specifically taken away from any other Court / Tribunal / Forum under section 34 of the Act, 2002."

Similarly view was taken by another Bench of this Commission in Consumer Complaint No. 302 of 2012 tiled Yashwant G Ghaisas&Ors. Versus Bank of Maharashtra decided on 06.12.2012. An appeal against the said order was filed in the Supreme Court and Civil Appeal No. 1359 of 2013 was dismissed by the Hon'ble Supreme Court with following observations:

 

"It is clear that this case is covered under the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002. Section 34 of the said Act is reproduced as hereunder:-

 

34. Civil court not to have jurisdiction. - No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)".

 

The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13 (2) of the SARFAESI ACT that should be brought to the notice of the concerned authority. It is well settled that main creditor and the guarantors are equally responsible. There lies no rub for the bank to take action against the guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the bankers are working within the ambit of SARFAESI ACT, it cannot be said to be deficiency on the part of the bank. It must be established that there is deficiency on the part of the bank. In that case this commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching the appropriate Forum as per law.

 

14. Having regard to the discussion done and the legal position explained we are of the considered view that the complaint is not maintainable before the Consumer Forum since the complainant being the auction purchaser is not a consumer and thus not entitled to raise the consumer dispute. Secondly the issue, relying on Section 34 of the SARFAESI ACT, cannot be adjudicated by this Commission. Accordingly the complaint is returned granting liberty to the complainant to file it before the appropriate forum enjoying the jurisdiction therefor.”

 

6. Coming to the facts of the matter in hand, the symbolic possession of the Complainant’s property has been taken by the Opposite Party officials vide notice dated 07.03.22 u/s 13 (4) of SARFAESI Act.
7. In this context, it is relevant to mention here that Section 35 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 (“SARFAESI Act”) reads as under

“Section 35 – The provisions of this Act to override other laws: The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any of the law for the time being in force or any instrument having effect by virtue of any such law”.

8. In view of above legal position, we are of the considered view that since the present matter is already seized under the provisions of the SARFAESI Act, it cannot be adjudicated by the Consumer Forum.
9. Thus, the complaint cannot be admitted, hence, the same is dismissed.
10. Order announced on 12.10.23.

Copy of this order be given to the Complainant free of cost.

File be consigned to Record Room.

 

(Anil Kumar Bamba)         Member

(Adarsh Nain)      Member

(Surinder Kumar Sharma)               President